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1954 DIGILAW 208 (KER)

Achuthan v. Rent Controller, Trichur

1954-12-07

KOSHI, M.S.MENON

body1954
Judgment :- 1. The Petitioner prays: "(a) that a writ in the nature of certiorari or other appropriate writ, directive or order be issued quashing the order of the Rent Controller dated 5.8.1954 by calling for the records in R.C.P. 163 of 1954; (b) that a writ in the nature of prohibition or other appropriate writ, directive or order be issued prohibiting the counter-petitioner from proceeding with R.C.P. 163 of 1953; and (c) that appropriate writ, directive or order under Art. 226 at the Constitution of India may be issued upon the counter-petitioners asking them not to proceed in any manner by virtue of any provision of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950". His contention before the Rent Controller was that he had no jurisdiction to deal with R.C.P. 163 of 1953 or even to consider whether he had the requisite jurisdiction or not. The order of 5.8.1954 is the order by which the said contention was rejected and the Rent Controller directed: "The enquiry in R.C.P. 163 of 1953 will be proceeded with". 2. The objection to jurisdiction is based on Cl. 9(1) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950 which reads as follows: "A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this clause: Provided that nothing contained in this clause shall apply to a tenant whose landlord is Government: Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bonafide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this clause notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded". According to the petitioner the normal jurisdiction of the ordinary civil courts to deal with suits for eviction are taken away by the said clause only in cases where there is no dispute regarding the existence, the ambit or the terms of the tenancy concerned and when there is a dispute the Rent Controller has jurisdiction to proceed with the petition filed before him in two cases and two cases only: (1) Where the tenant denies the title of the land-lord; and (2) Where he claims a right of permanent tenancy. 3. In R.C.P. 163 of 1953 the subject matter of the lease is clearly in dispute, the land-lords - the 2nd and 3rd respondents before us - contending that only certain buildings in a paramba were leased without any portion of the land and the tenant - the petitioner before us - that the lease was of the paramba together with the structures thereon. In view of this dispute and the fact that he does not deny the title of the land-lords or claim a right of permanent tenancy the petitioner contends that it is the District Munsiff and not the Rent Controller who has jurisdiction to deal with the matter and that the order of 5.8.1954 cannot be sustained. 4. Cl. 9(1) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950 provides no warrant for this contention. As we read it, what it does is to vest an exclusive jurisdiction in the Rent Controller to deal with the matter, the only exception being where the tenant denies the title of the land-lord or claims a right of permanent tenancy and he decided that the said denial or claim is bona fide and records a finding to that effect. In such a case and such a case alone will the land-lord be entitled to sue for eviction of the tenant in a civil court and the second proviso makes it clear that in such cases the civil court may pass a decree for eviction on any of the grounds mentioned in Cl. 9 "notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded". 9 "notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded". Even in cases where the tenant denies the title of the land-lord or claims a right of permanent tenancy but the Rent Controller finds that the denial or the claim is not bona fide the remedy is not in the civil court but before the Rent Controller himself as can be seen from the fact that the last of the six grounds of eviction specified in sub-cl. (2) of Cl. 9 is: "that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bonafide". 5. It follows that the Rent Controller has certainly got the jurisdiction to proceed with the matter, that the order of 5.8.1954 was the order that he should have passed and that this petition should be dismissed. 6. The only other matter that has to be dealt with arises because of the decision of this court in 1953 K.L.T. 110 which according to counsel appearing for the petitioner and the respondents is creating a certain amount of confusion regarding the true meaning and scope of the definition of the term "building" in Cl. 2(1) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950. The definition reads as follows: "Building" means any building or but or part of a building or hut, let or to be let separately for residential or non-residential purposes, and includes - (a) the garden, grounds and out-houses, if any, appurtenant to such building, but or part of such building or but and let or to be let along with such building or hut; (b) any furniture supplied by the landlord for use in such building or hut, or part of a building or but but does not include a room in a hotel or boarding house". and in 1953 K.L.T. 110 it is stated: "As per this definition the primary and the essential test to be satisfied is that there should be a letting out of a building or but or part of the same, separately for residential or non-residential purposes. and in 1953 K.L.T. 110 it is stated: "As per this definition the primary and the essential test to be satisfied is that there should be a letting out of a building or but or part of the same, separately for residential or non-residential purposes. If there has been such a separate letting out of a building or but or part of the same for residential or non-residential purposes, then the garden, grounds and out-houses, if any, appurtenant to such building or but would also be deemed to be included in the lease or rental arrangement. But it is obvious that the converse position cannot hold good, i.e. if there has been a leasing out of a garden land together with the buildings or huts standing thereon, the transaction cannot be said to amount to letting out of the buildings or huts separately for residential or non-residential purposes. In such a case the buildings and huts will only form part of the leasehold which consists mainly of the garden land". 7. The words "let or to be let separately" in the definition apply only to "part of a building or hut" and not to "building or hut" and any indication to the contrary in the passage extracted above cannot be sustained by the wording of the definition. It will be wrong to say that in the case of buildings or huts the Rent Control Order is available only when they are let separately from the compound in which they are situate, and it is quite possible that no such idea was as a matter of fact intended to be conveyed by the learned judges who decided the case. As to whether the subject-matter of a particular lease is a "building" as defined in the Order will depend on whether the land, if any, involved in the lease can be considered as appurtenant to the building or but and in cases where only a part of a building or but is involved, whether the land can be considered as appurtenant to the part of the building or but covered by the lease. Dismissed.